Canons as Sayings

My summer-reading highlight for 2014 was Surfaces and Essences, by Douglas Hofstadter and Emmanuel Sander. The book is primarily concerned with the relationship between analogies and human thought, but it also offers some fun and interesting insights about language along the way. My favorite such insight had to do with “mutually contradictory proverbs,” i.e., pairs of sayings/idioms that reflect starkly conflicting pieces of advice. Hofstadter and Sander have collected several of these competing pearls of wisdom, including, for example:

Strike while the iron’s hot . . . but then again, Look before you leap.

Two’s company, three’s a crowd . . . but then again, The more, the merrier.

The pen is mightier than the sword . . . but then again, Actions speak louder than words.

And if I may add just a few more of my own (I’ve been alertly on the lookout all summer):

Be yourself! . . . but then again, When in Rome, do as the Romans do.

You never get a second chance to make a first impression . . . but then again, Today is the first day of the rest of your life.

#YOLO . . . but then again, #YOLO.

Naturally, my quest to identify mutually contradictory proverbs brought to mind Karl Llewellyn’s famous law review article on the canons of statutory construction. As Hofstadter and Sander have done with sayings, Llewellyn did with the canons, contending that they often come in mutually contradictory pairs. For instance:

“A statute cannot go beyond its text” . . . but then again “To effect its purpose a statute may be implemented beyond its text.”

“Every word and clause must be given effect”. . . but then again “If inadvertently inserted or if repugnant to the rest of the statute, they may be rejected as surplusage.”

“Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute” . . . but then again “Rules of grammar will be disregarded where strict adherence would defeat purpose.”

Now, I happen to think that Llewellyn overstated the case for the canons’ inconsistency. Many of his pairings don’t so much identify obviously contradictory canons as they identify one canon stating a rule and another canon stating an exception to that rule. (E.g., “If language is plain and unambiguous it must be given effect,” but then again, “[n]ot when literal interpretation would lead to absurd or mischievous consequences or thwart manifest purpose.”). And other examples strike me as not even contradictory in that limited sense. (E.g., “Statutes in pari materia must be construed together,” but then again, “A statute is not in pari materia if its scope and aim are distinct . . .”). Still, I do think Llewellyn was onto something in suggesting that the canons can be used to justify a wide enough range of statutory “moves” as to render them largely incapable of providing meaningful interpretive guidance in difficult statutory cases. And in that sense, canons are a bit like the proverbs of everyday language: They don’t so much provide ex ante reasons for choosing one action over another as much as they provide pithy, post hoc justifications for a choice that has already been made.

But if Llewellyn is right about the canons’ failure to offer meaningful ex ante guidance, does it follow that the canons serve no purpose? Not necessarily. Consider what Hofstadter and Sander have to say about their mutually contradictory proverbs:

The fact that each line features a pair of proverbs that assert contradictory things shows that what counts is not a proverb’s truth, but its ability to cast light on a situation, allowing it to be seen as more than simply a recitation of events. Don’t judge a book by its cover and Where there’s smoke, there’s fire are categories that help one to highlight, on the one hand, the importance of not being distracted by cheap attention-getting tricks and of looking below the surface of things, and on the other hand, the importance of not ignoring what’s right in front of one’s eyes and of paying attention to salient clues. These two opposite stances, embodied in short and familiar phrases, can, if they form part of one’s lexicon, be used to pin pithy labels on, and thus concisely categorize, novel situations that are very complex, thereby implicitly conveying entire attitudes about them.

My parting thought for this now-rambling post is that maybe the canons of construction serve an analogous purpose. Thus, for instance, when a court invokes the authority of the canon that “a legislature says in a statute what it means and means what it says,” what the court really communicates is something like: “We have concluded that this case presents a says-what-it-means-and-means-what-it-says situation, one in which the system-wide benefits of reading the statute literally (i.e., honoring legislative supremacy, encouraging clear draftsmanship, deterring judicial policy-making, etc.) sufficiently outweigh the costs of embracing the literal reading (i.e., tensions with some other part of the statutory scheme, an unfair-seeming judicial outcome, a refusal to honor legislative intent, etc.).” And similarly, when a court invokes the authority of the canon that “language must be read in the context of the purpose it was intended to serve,” what the court really communicates is something like: “We have concluded that this case presents a read-the-language-in-context situation, one in which the benefits of generating a result in concert with the purpose and objects of the statutory scheme are sufficiently great as to justify what strikes us as a fairly minor deviation from literal legislative language, a deviation that is not likely to jeopardize the legislature’s place as the supreme lawmaker within our governmental system.”

Put somewhat differently, even if the canons are unable to help us resolve contested issues of statutory construction, they may still provide a service in enabling us to discuss those issues in a more cognitively manageable fashion.